Clarke roasts Smith over 42 days and Harriet Harman sticks her nose in.
Channel 4 News have a somewhat intriguing exclusive, namely letters between Charles "Safety Elephant" Clarke and "Wacky" Jacqui Smith, former and current Home Secretary respectively over 42 days.
Sadly this isn't Clarke deciding that 42 days was a step too far despite helming the attempt to ram 90 days through parliament, but rather instead making his concerns felt that the so-called "concessions" have actually made it next to impossible for any extension beyond 28 days to be put into place, something the police themselves briefed they were worried about. Channel 4 have helpfully providedthe letters in full (PDFs), but his main concerns are summarised as that derogating from the ECHR seems to be easier than putting in motion the process to trigger 42 days, that the legal advice needed to do so would likely to be leaked, damaging the opportunity for a prosecution, with the subsequent vote on the matter limited to a vote of confidence in the Home Secretary, and finally that the bypassing of the attorney general over the legal advice would be a "major constitutional departure".
While his claim that the ECHR process would be easier doesn't stand up, as there needs to be a "serious threat to the life of the nation" to justify such a derogation, when 42 days would require a "grave exceptional terrorist threat", and the law lords have already struck down the derogation, rightly concluding that the current threat does not even begin to seriously threaten the life of the nation*, his second concern is exactly what both the critics of the "concessions" on both sides have argued; doing absolutely nothing to alter the pernicious and poisonous extension to 42 days while making the legislation worse, with it approaching an incredibly dangerous joke, setting a precedent of involving parliament in decisions that should be solely left to the judiciary.
Smith inevitably fobs him off with the same completely unconvincing justifications that she used in the Commons. It's his final response which is potentially dynamite:
Clarke's inference is clear: he too, like the critics from the other side, thinks that this whole thing is politically motivated to show the Conservatives as being soft on terror while putting down completely unworkable legislation. The real question is just who leaked it: even considering Clarke's past record in being highly critical of Gordon Brown, this seems to go far beyond even that. Perhaps it was someone in the Home Office, disgruntled one way or another who had access to the correspondence. Either way, this is just another person formerly allied with the past attempt to get through 90 days that is deeply concerned by the shoddiness and indefensible determination to pass through irredeemable legislation in the face of criticism from all sides.
Meanwhile, Harriet Harman has been sticking her nose over gorgeous pouting Andy Burnham's comments on how David likes Shami:
Now of course that she's not at Liberty Harman just supports 90 day detention without charge, the smoking ban, ID cards and criminal exercises in Iraq. By that yardstick, there's very little to choose between the two when it comes to civil liberties. Harman however supports the motions which need to opposed right now; Davis supports ones which are unlikely to come to fruition or which at the moment are irrelevant.
In any case, Harman is just playing the (wo)men instead of the ball. She doesn't actually defend 42 days, or bother involving herself in any discussion of the measures; she just criticises an organisation which she may as well have never been a member of, while keeping the whole matter in the news. New Labour just really doesn't get it.
*Update: Phil correctly points out in the comments that it was a minority opinion of Lord Hoffman's that there was not a serious threat to the life of the nation. The other law lords ruled that:
This doesn't alter the fact that derogating from the ECHR, while it could be easier, would be open to even wider criticism and judicial scrutiny than 42 days, and it seems just as likely that the law lords would still rule against it when brought before them. It would also leave the potential for an appeal, were those held subsequently convicted, on the grounds that their excessive detention rendered their convictions unsafe. At least with 42 days there is a time limit; derogating from the ECHR, even if only temporarily in the aftermath of a large terrorist attack or foiled plot, would take us even further down the road to the nightmare of an all powerful police state.
Sadly this isn't Clarke deciding that 42 days was a step too far despite helming the attempt to ram 90 days through parliament, but rather instead making his concerns felt that the so-called "concessions" have actually made it next to impossible for any extension beyond 28 days to be put into place, something the police themselves briefed they were worried about. Channel 4 have helpfully providedthe letters in full (PDFs), but his main concerns are summarised as that derogating from the ECHR seems to be easier than putting in motion the process to trigger 42 days, that the legal advice needed to do so would likely to be leaked, damaging the opportunity for a prosecution, with the subsequent vote on the matter limited to a vote of confidence in the Home Secretary, and finally that the bypassing of the attorney general over the legal advice would be a "major constitutional departure".
While his claim that the ECHR process would be easier doesn't stand up, as there needs to be a "serious threat to the life of the nation" to justify such a derogation, when 42 days would require a "grave exceptional terrorist threat", and the law lords have already struck down the derogation, rightly concluding that the current threat does not even begin to seriously threaten the life of the nation*, his second concern is exactly what both the critics of the "concessions" on both sides have argued; doing absolutely nothing to alter the pernicious and poisonous extension to 42 days while making the legislation worse, with it approaching an incredibly dangerous joke, setting a precedent of involving parliament in decisions that should be solely left to the judiciary.
Smith inevitably fobs him off with the same completely unconvincing justifications that she used in the Commons. It's his final response which is potentially dynamite:
Clarke's inference is clear: he too, like the critics from the other side, thinks that this whole thing is politically motivated to show the Conservatives as being soft on terror while putting down completely unworkable legislation. The real question is just who leaked it: even considering Clarke's past record in being highly critical of Gordon Brown, this seems to go far beyond even that. Perhaps it was someone in the Home Office, disgruntled one way or another who had access to the correspondence. Either way, this is just another person formerly allied with the past attempt to get through 90 days that is deeply concerned by the shoddiness and indefensible determination to pass through irredeemable legislation in the face of criticism from all sides.
Meanwhile, Harriet Harman has been sticking her nose over gorgeous pouting Andy Burnham's comments on how David likes Shami:
Now of course that she's not at Liberty Harman just supports 90 day detention without charge, the smoking ban, ID cards and criminal exercises in Iraq. By that yardstick, there's very little to choose between the two when it comes to civil liberties. Harman however supports the motions which need to opposed right now; Davis supports ones which are unlikely to come to fruition or which at the moment are irrelevant.
In any case, Harman is just playing the (wo)men instead of the ball. She doesn't actually defend 42 days, or bother involving herself in any discussion of the measures; she just criticises an organisation which she may as well have never been a member of, while keeping the whole matter in the news. New Labour just really doesn't get it.
*Update: Phil correctly points out in the comments that it was a minority opinion of Lord Hoffman's that there was not a serious threat to the life of the nation. The other law lords ruled that:
The seven other judges who ruled against the government said the decision on whether a public emergency existed was for the state to take.
But they ruled that indefinite detention without trial was unlawful because it was a disproportionate interference with liberty and with equality.
The opt-out allows only such measures as are strictly required to deal with the emergency.
The seven held that the legislation discriminated against foreign nationals because there are no similar powers to lock up British nationals - the government has admitted that such a power would be difficult to justify.
This doesn't alter the fact that derogating from the ECHR, while it could be easier, would be open to even wider criticism and judicial scrutiny than 42 days, and it seems just as likely that the law lords would still rule against it when brought before them. It would also leave the potential for an appeal, were those held subsequently convicted, on the grounds that their excessive detention rendered their convictions unsafe. At least with 42 days there is a time limit; derogating from the ECHR, even if only temporarily in the aftermath of a large terrorist attack or foiled plot, would take us even further down the road to the nightmare of an all powerful police state.
Labels: 42 days, Channel 4 News, Charles Clarke, civil liberties, David Davis, Harriet Harman, Jacqui Smith, no compromise on 42 days, Shami Chakrabarti
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the law lords have already struck down the derogation, rightly concluding that the current threat does not even begin to seriously threaten the life of the nation
I'm not convinced they did - my recollection of the judgment against ATCSA was that they passed this bit but vetoed executive detention as a disproportionate response to it (and discriminatory, but that's by the way). In an odd way this is actually more of a protection - if Belmarsh was disproportionate then, hopefully it'd still be disproportionate after another bombing.
Posted by
Phil |
Saturday, June 21, 2008 9:06:00 AM
I think you're right but the ruling, according to the Guardian reports from the time was on the grounds that:
The seven other judges who ruled against the government said the decision on whether a public emergency existed was for the state to take.
But they ruled that indefinite detention without trial was unlawful because it was a disproportionate interference with liberty and with equality.
The opt-out allows only such measures as are strictly required to deal with the emergency.
The seven held that the legislation discriminated against foreign nationals because there are no similar powers to lock up British nationals - the government has admitted that such a power would be difficult to justify.
I will add a correction to the post, though.
Posted by
septicisle |
Saturday, June 21, 2008 4:33:00 PM
The PTA 2005 - the one that brought in control orders - actually enables the Home Secretary to make a 'derogating' control order. So far they haven't made any - and several of the non-derogating orders have been struck down as excessive. So I think you're right - derogating from the ECHR in this way, while it would be a very bad move, in practice isn't going to happen.
Posted by
Phil |
Saturday, June 21, 2008 7:53:00 PM